Judging the judges

Almost 15 years have passed since the British constitution was last updated. The Constitutional Reform Act 2005 required the lord chancellor to be “qualified by experience”, a stricture that has been honoured as much in the breach as the observance. That legislation also set up a Supreme Court, which celebrated its tenth anniversary last autumn by declaring that the prime minister had acted unconstitutionally.

In the case that lawyers now call Miller No 2, 11 justices decided that the prime minister could not use prerogative powers to prorogue parliament for longer than the courts thought appropriate. Miller No 1, in 2017, decided that the prime minister could not use prerogative powers to trigger the UK’s departure from the EU. Will there be a Miller No 3, which decides that a prime minister may no longer use prerogative powers, without prior judicial approval, to launch military action?

Probably not. But senior judges are concerned by reputational damage that may result the next time somebody brings a politically inspired challenge. “Enemies of the people”, the Daily Mail’s description of senior judges in 2016, still casts a long shadow. And the stakes were raised by a sinister-sounding — though impracticable — pledge in the Conservative election manifesto. “We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state,” it said, “while ensuring that it is not abused to conduct politics by another means or to create needless delays.”

All members of the judiciary believe they are neutral on Brexit and other great issues of the day. But how can they convince politicians and the public?

The Constitutional Reform Act was meant to strengthen judicial independence by transferring leadership responsibilities from the lord chancellor to the lord chief justice. But some believe it had the opposite effect. Senior judges still feel the loss of a champion in cabinet, a role they think the lord chancellor played until Lord Irvine of Lairg was sacked by Tony Blair in 2003.

All members of the judiciary believe they are neutral on Brexit and other great issues of the day. But how can they convince politicians and the public? By appearing more often before parliamentary committees? These have minimal impact. Should they deliver more lectures? Judges’ comments are often taken out of context, if reported at all. More radio and television interviews? From their point of view, these are high risk — although it would make a huge difference if English judges could be televised when they sit as a divisional court.

Among more thoughtful members of the judiciary, there’s a growing belief that something more fundamental needs to happen. It’s not public opinion that the judges need to change. It’s the British constitution.

The lord chancellor has statutory responsibility to “uphold the continued independence of the judiciary”. Other ministers share that responsibility.

And yet Jacob Rees-Mogg, as leader of the Commons, was reported as telling cabinet colleagues last September that the Supreme Court’s decision on prorogation amounted to “the most extraordinary overthrowing of the constitution”. Another minister had said on television, after an earlier ruling, that “many people, many Leave voters . . . are beginning to question the partiality of the judges”. And Boris Johnson was happy to let people believe he could ignore any court order that might require him to seek a Brexit extension.

We should not be surprised to see politicians biting the hand that has just taken the bread out of their mouths. There was very welcome support for the judiciary last autumn from the attorney general and the lord chancellor. But can we really expect members of the government to give full-hearted backing to judges who rule that their fellow ministers have acted unlawfully?

The only people who can speak for the judges are the judges themselves. That, after all, is what judicial independence means. They should no longer hark back to some golden age when the lord chancellor supposedly represented the judges’ views to the government and the government’s views to the judges. That worked, if it ever did, because the lord chancellor was a judge and a legislator as well as a cabinet minister. It is no longer practicable to combine those three roles.

The Conservatives’ manifesto promised to create a “constitution, democracy and rights commission” that would examine the relationship between the government, parliament and the courts before coming up with “proposals to restore trust in our institutions”. On the face of it, that seems the right way forward. But the judges should be cautious of being dragged into anything that might weaken their constitutional role.

For the judges’ views to carry weight, their position in the constitution must be secure. The government — and parliament — must agree in advance on the courts’ ability to limit prerogative powers. In other countries, such an agreement would form part of a written constitution. But codifying the UK’s uncodified constitution would be an endless task. The way forward is clear: we need another Constitutional Reform Act.